JAINABAI WD/O GANGARAM UPRE Vs. RAVISHANKARSUKHDEO VAIRAGADE

JUDGEMENT

(1.) BY invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the original defendants have filed this second appeal challenging the judgment and order dated 25-9-1987 passed by the Additional District Judge in Regular Civil Appeal No. 60/1982 whereby the Regular Civil Appeal No. 68/1982 filed by the plaintiff came to be allowed and the decree passed by the trial Court dismissing the claim of the plaintiff for declaratory relief is set aside and it was declared by the appellate Court that the plaintiff is the owner of the suit house and he is in possession of the same in his own right as an owner. The appellate Court also dismissed the Regular Civil Appeal No. 68/1982 filed by the original defendants and the decree passed by the trial Court granting permanent injunction was confirmed.

(2.) BRIEF facts are required to be stated as under : The plaintiff instituted the suit for possession on the basis of title on the contentions that the suit house situated in Bhandewadi (Pardi), Ward No. 11, Nagpur, Sheet No. 493, Chalta No. 71 is owned by him and his name has been recorded in the assessment register of the Nagpur Municipal Corporation as an owner. It is contended that the defendants were original owner of this house and they had agreed to sell the suit house by virtue of the agreement dated 21-8-1954 for consideration and deliver the possession on that date in the part performance of the contract. Subsequently on 4-9-1954 the sale deed was executed in favour of the plaintiff but it could not be registered. Taking undue advantage of the fact that the sale deed could not be registered, the defendants made an application to the Superintendent of Land Records (Town Planning in Survey) for getting the suit house recorded in their names and the officer recorded the names of the defendants as title holder in respect of the suit house. The plaintiff preferred appeal to the higher authority against that order which came to be dismissed on 21-7-1976. It is contended by the plaintiff that he is the owner and had been in continuous and uninterrupted possession of the suit house in his own rights as an owner to the knowledge of the defendants and the latter had acquiescence in the title and therefore, now they are estopped under law from disputing the title. It is contended that the plaintiff has also perfected his title by adverse possession on account of his continuous possession since 21-8-1954 and the defendants are trying to disturb the possession on the pretext that the order has been passed by the Superintendent of Land Records in their favour. The plaintiff, after purchase of the suit house, made some construction and spent the amount of Rs. 8,000/-over the construction by obtaining requisite permission from the Municipal Corporation. The defendants were trying to disturb the possession and therefore, the plaintiff was compelled to file the suit for possession based on title and also for consequential relief of permanent injunction restraining the defendants from interfering or disturbing with the peaceful possession of the plaintiff over the suit house. The defendant No. 1 died during the pendency of the appeal before the appellate Court and his legal representatives were brought on record. The defendant No. 1 contested the suit by filing his written statement. He admitted that the plaintiff preferred the appeal before the Supdt. Of Land Records, City Survey, Nagpur and the same was dismissed. He contended that the enquiry officer from the office of Land Records City Survey had on his own held enquiry about the title to the suit house and after verification of the necessary records, he had recorded findings that the defendant No. 1 was the owner of the suit house. It was contended that the signature of the father of the defendants was obtained by the plaintiff on one document by playing fraud upon the defendants and the sale deed was got executed, which is not binding on the defendants. It was further contended that the plaintiff being the relative, i. e. , brother in law, was allowed to occupy the suit house as a licensee. He contended that the sale deed in question was absolutely false, illegal and cannot be enforced in law. He contended that the plaintiffs contention that he became the owner by virtue of adverse possession is misconceived and totally false. He contended that in fact the suit house was purchased by him in Court auction in Civil Suit No. 314/1935. The auction was held on 24-9-1942 and the sale was confirmed in his favour on 30-10-1942 and since then the defendant No. 1 is absolute owner of the suit house.

(3.) ON the aforesaid pleadings, the trial Court framed several issues for consideration. The parties adduced evidence and relied on oral as well as documentary evidence produced on record. The trial Court on consideration of the evidence recorded the finding that the plaintiff did not establish his title to the suit house, that the contract of sale is binding on the defendant No. 1, the trial Court negatived the contentions of the defendants that the plaintiff is occupying the suit house as a licensee and that the plaintiff has become owner by virtue of adverse possession and consequently held that the plaintiff is not entitled to the declaration sought for title. However, the appellate Court, was of the view that since the plaintiff was in possession, he was entitled to the claim permanent injunction and consequently he decreed the suit for permanent injunction restraining the defendants permanently from disturbing the possession and dismissed the suit of the plaintiff so far as the claim for declaration of title is concerned. The plaintiff being aggrieved by the judgment and decree passed by the trial Court preferred appeal which came to be registered as Regular Civil Appeal No. 60/1982 whereas the defendants also filed Regular Civil Appeal No. 68/1982 in the District Court against the same judgment and decree. The learned Additional District Judge on hearing the learned counsel for the parties, dismissed the Regular Civil Appeal No. 68/1982 filed by the defendants and confirmed the judgment and decree passed by the trial Court granting permanent injunction whereas the appellate Court allowed Regular Civil Appeal No. 60/1982 filed by the plaintiff and set aside the judgment and decree passed by the trial Court dismissing the claim of the plaintiff for declaratory relief and instead passed the decree and declared that the plaintiff is the owner of the suit house and is in possession of the same in his own rights as an owner. This judgment and decree passed by the appellate Court is under challenge in this second appeal.